As we previously reported, Spry Fox sued 6waves for copyright infringement back in January 2012. Spry Fox developed Triple Town, and 6waves developed the suspiciously similar Yeti Town. Well we have a significant update. 6waves filed a motion to dismiss, asking the court to throw out the lawsuit based on 6waves’ belief that they only copied unprotectable material from Spry Fox. While the court agreed in part, the court ultimately ruled that Spry Fox alleged enough in its complaint that, if proven at trial, could demonstrate that 6waves committed copyright infringement. For any game designer, we strongly recommend you read the DECISION for yourself, as it contains some good fodder regarding what is protectable versus what is not.

For example, the court states:

Copyright does not protect the ideas underlying a work or other aspects that are beyond the scope of the Copyright Act. By statute, copyright does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b). Several judicial doctrines ensure that copyright does not extend to the ideas underlying a work…. At this stage of the litigation, where the court has only the complaint, its description of Triple Town, and the accompanying screen shot images, the court concludes that the idea underlying Triple Town is that of a hierarchical matching game, one in which players create objects that are higher in the hierarchy by matching three objects that are lower in the hierarchy. Frustrating the player’s efforts are antagonist objects; aiding the player are objects that destroy unwanted or ill-placed objects. Spry Fox’s copyright gives it no monopoly over this idea. 6Waves (or anyone else) is free to create a video game based on the same idea.

However, the court goes on to analyze similarities of expression between Triple Town and Yeti Town, concluding that there are at least enough similarities to go to trial. Is this over? No. There is a long road ahead. But this Order at least gives us some guidance regarding what is protectable versus what is not. For example, the court also states:

Although the court need not decide the issue in this motion, it appears that some elements of Triple Town are not protectable because they are functional. Much as copyright does not protect ideas, it does not protect the “functional process[es]” that are “indispensable to the idea” inherent in a game. Apple, 35 F.3d at 1444 (considering functional ideas in computer operating system user interface). For example, Spry Fox’s choice of a six-by-six game grid is not likely an expressive choice. A grid that is too small would make the game trivial; a grid that is too large would make it pointless. There is perhaps a range of functionally appropriate choices for the dimensions of the game grid; perhaps a seven-by-seven grid, or a six-by-seven grid, would serve the game’s purposes just as well. But it would extend copyright protection beyond its proper scope to afford protection to a functionally-dictated choice like this one.

This is interesting because, in the past, the owners of the Tetris copyright have argued that the size of their grid was an expressive choice. and couldn’t be copied. At the time, however, the court did not appear to give much consideration to the functional considerations of grid size in the Tetris context. Perhaps it’s time to revisit that notion…

While the above examples illustrate the portions of Triple Town that are NOT protected, the court’s decision also points to some areas of expression that were copied, e.g., the progression of grass, bushes, trees, huts, houses, etc. in Triple Town to saplings, trees, tents, shacks, etc., in Yeti Town. The similarity of playing board environments, and the use of wild animals as blocking characters, to name a few. Did 6waves go too far? Time will tell.

One other interesting issue is how this might affect the EA v. Zynga case. I am sure that the attorneys for both sides are reviewing this decision in excruciating detail trying to figure out how this affects their case.

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